RE LAWE WILLIAN ENTERPRISES LTD

1989, No. 1638

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H E A D N O T E

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The standard to be adopted when an application is made to the Court for an order that a case be heard during the vacation under Order 64, rule 3(2) of the Rules of Supreme Court is a high one. In re Showerings, Vine Products & Whiteways Ltd.'s Application [1968]1 W.L.R. 1381 and Esso Petroleum Co. Ltd. v. Dawn Property Co. Ltd. [1973]1 W.L.R. 1450 followed.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 1638 OF 1989

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D E C I S I O N

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1. This is an application by the Stock Exchange of Hong Kong Limited (the respondent) to vacate dates fixed for the hearing of a judicial review in the long vacation.

2. On the 10th July, Barnes, J. granted to Lawe William Enterprises Limited (the applicant), leave to apply for judicial review for an order of certiorari in respect of a decision of the respondent made on the 10th April which cancelled the listing and permission to deal in securities of the applicant on the Stock Exchange. In fact there has been no trading by the applicant since the 4th August 1977 when it was suspended at its own request.

3. By an application made by a letter dated the 12th July which, I am told was coupled with an oral application, the solicitors for the applicant, without giving any notice to the respondent, obtained leave from Master Jennings on that date for the judicial review to be heard during the long vacation. Two grounds were put forward in the application; first, the matter is of great importance and urgent, and second, neither leading counsel nor junior counsel instructed will be available after the long vacation. Having obtained leave from the Master dates were fixed on the following day, the 13th July, again without consultation with the respondent for the judicial review to be heard from the 14th to the 16th of August.

4. As the hearing of a judicial review is not vacation business, it was necessary for the applicant to satisfy the Master of the requirements of Order 64, rule 3(2) of the Rules of the Supreme Court which reads :-

"3(2) Any party to a cause or matter may at any time apply to the court for an order that such cause or matter be heard in vacation and, if the court is satisfied that the cause or matter requires to be immediately or promptly heard, it may make an order accordingly and fix a date for the hearing."

Whether a case comes within the rule it is pertinent to refer to Order 53, rule 4 of the Rules of the Supreme Court which provides that an application for leave should be made promptly and in any event within three months from the date when the grounds for the application first arose unless the court considers that there is good reason for granting an extension. The applicant in this case did not move swiftly for the three month period had almost expired before the application for leave was filed.

5. There is no doubt that the matter is of great importance to the applicant but this equally applies to the respondent. Further, as submitted by Mr Mitchell, counsel for the respondent, the case has wider implications for it is a matter of considerable public interest and importance that not only concerns the applicant, but also other companies that have been delisted. Although the facts may not be in dispute, it is clearly a case of some complexity that is likely to raise difficult points of law. These are likely to include a challenge by the respondent as to whether the issue in question is capable of judicial review, and the principles of natural justice and reasonableness.

6. Mr Faulkner, counsel for the applicant, drew my attention to a passage in the White Book at 53/1 - 14/34 which provides that a judge granting leave for judicial review can direct that the case be considered for expedition. However, no such direction was given by Barnes, J.

7. Mr Mitchell referred me to two authorities In re Showerings, Vine Products & Whiteways Ltd.'s Application. [1968]1 W.L.R. 1381 and Esso Petroleum Co. Ltd. v. Dawn Property Co. Ltd. [1973]1 W.L.R. 1450 which cases concerned the predecessor of the present rule when the word "urgent" was included instead of the words "immediately" or "promptly". However, I believe that the principles enunciated in those cases that a high or stringent standard is required also apply to the present rule. However, in this case no grounds, whatsoever, were advanced by the applicant to justify a hearing during the long vacation and so jump the queue. The underlying reason for this application was to suit the convenience of counsel.

8. The Master not only failed to exercise his discretion correctly but did not take into account the difficulties or prejudice likely to be experienced by the respondent by reason of the short time available in order to prepare the case and to instruct counsel, a great many of whom will be away at this time of the year. The latter has already proved to be the case for I am told that only two out of eleven counsel approached is available on the dates fixed.

9. In considering the application by the respondent to vacate the dates fixed, I share the disquiet expressed by Mr Mitchell at the conduct of the applicant's solicitors in making the application before the Master and arranging the dates for the hearing without notice to the respondent. Their lack of courtesy in this respect is to be deprecated. If the solicitors had shown some degree of co-operation, the present application with the time and costs involved could have been avoided. In the result, the order of Master Jennings will be set aside and the dates fixed for the hearing from the 14th to the 16th of August will be vacated. The motion will therefore be adjourned to a date to be fixed in consultation with counsel.